Tabanas v Medical Board of Australia
[2013] QCAT 522
•2 September 2013
| CITATION: | Tabanas v Medical Board of Australia [2013] QCAT 522 |
| PARTIES: | Dr Troy Tabanas (Applicant) |
| v | |
| Medical Board of Australia (Respondent) |
| APPLICATION NUMBER: | OCR148-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 2 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Medical Board of Australia made on 9 April 2013 and notified to Dr Troy Tabanas by a Notice of Refusal dated 6 May 2013, is stayed until 30 September 2013, or until further order of the Tribunal. 2. The matter is listed for a directions hearing at 10:00 am on 20 September 2013. |
| CATCHWORDS: | HEALTH PRACTITIONERS – MEDICAL PRACTITIONERS – LICENCES AND REGISTRATION – where the registrant held limited registration for an area of need – where the registrant applied for renewal of his registration – where the Board refused to renew the registrant’s registration – where the registrant sought a stay of the Board’s decision – whether the Tribunal should stay the Board’s decision to refuse to renew the registrant’s limited registration in an area of need Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (Qld), s 123 Attudawage v Medical Board of Australia (No 2) [2011] QCAT 452, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 12 June 2013, the Tribunal constituted by me stayed the decision of the Medical Board of Australia, notified by a Notice of Refusal dated 6 May 2013. The stay is effective until 30 September 2013 or further order of the Tribunal.
These are the reasons for the Tribunal’s decision to grant the stay.
The decision under review
On 6 May 2013 the Australian Health Practitioner Regulation Agency (‘AHPRA’) issued a notice pursuant to s 112 of the Health Practitioner Regulation National Law (Queensland) (‘National Law’) informing Dr Troy Tabanas that at its meeting of 9 April 2013 the Queensland Board of the Medical Board of Australia had determined to refuse his application for renewal of his limited registration as a medical practitioner.
The Board stated its reasons for refusing the renewal application as follows:
The reasons for the decision are:
1.In your response to the Board’s proposal to refuse your application for renewal of limited registration, you advised that you were scheduled to undertake the AMC MCQ on 16 February 2013 and the 2013.1 examinations of the RACGP. Although you indicated that you had reduced your clinical hours and were undertaking extensive study, you have failed both examinations.
2.You have not met the condition imposed on your special purpose registration (known now as limited registration) on 31 January 2008, namely ‘the registrant must apply for general or specialist registration within 4 continuous years of initial registration’.
3.On 1 February 2008, 21 January 2009, 29 January 2009, 2 March 2010, 24 June 2010, 2 March 2011 and 13 January 2012, you were informed by the previous Medical Board of Queensland and AHPRA Queensland of the requirement to progress towards general or specialist registration within four years required by the registration condition referred to above.
4.You have held limited registration (previously known as special purpose registration) since 31 January 2008 and have therefore had over five years to progress to general or specialist registration.
5.You were specifically advised in correspondence dated 13 January 2012 that you must be in a position to apply for either general or specialist registration by the end of your approved registration period of 13 November 2012 and were therefore not eligible to apply for a further renewal of your current limited registration. Further, any application for renewal would likely be refused.
6.While you had been attempting to progress towards specialist registration, you have failed the RACGP AKT on four occasions and the KFP on two known occasions. Therefore you remain required to successfully complete all components of the RACGP examinations which include the AKT, KFP and Objective Structured Clinical Examination before you are eligible to apply for fellowship of the RACGP.
7.You have failed the AMC MCQ in six attempts. The Board is of the view that the standard of the AMC MCQ examination is formally defined as the level of attainment of medical knowledge, clinical skills and attitudes which is required of newly qualified graduates of Australian medical schools, who are about to commence intern training. This examination is also a mandatory requirement for all new applicants for limited registration on the standard pathway. Your inability to pass this examination on six occasions raises concerns about your level of medical knowledge and clinical skills and hence your ability to competently and safely practise the profession.
8.Given the multiple AMC MCQ and RACGP examination failures, and in accordance with s 112 of the National Law, with reference to s 82(1)(c)(i)(C), you are not a suitable person to hold registration.
Notwithstanding the statement in the Board’s letter of 13 January 2012, as referred to in paragraph 5 of the reasons set out above, that Dr Tabanas was not eligible to apply for a further renewal of his limited registration, the Board in its submissions on the stay application frankly concedes that it did have the power to renew Dr Tabanas’ application on one further occasion.[1]
[1]The Board’s submissions on stay application filed 11 June 2013, at [10].
The registration of Dr Tabanas
Dr Tabanas was born in the Philippines in 1966. He migrated to Australia in 2008. He is permitted to reside and work in Australia under the authority of a subclass 457 – Temporary Work (Skilled) visa issued under the Migration Act 1958. To obtain such a visa requires sponsorship from an employer. Dr Tabanas has only worked at one location for one employer in Australia. That employer is Northtown Medical Centre in Townsville. Although it is not entirely clear from the material, it would seem that Northtown Medical Centre is the employer who sponsered him under the subclass 457 visa arrangements.
Dr Tabanas was granted what was then special purpose registration by the Medical Board of Queensland on 31 January 2008. The special purpose registration enabled Dr Tabanas to fill an area of need in group general practice at Northtown Medical Centre. His registration was subject to conditions. Those conditions included, as set out in the refusal notification, that he was required to ‘apply for general, specialist or Section 138 registration within 4 continuous years of special purpose registration’.
Dr Tabanas has not complied with this condition. Ms Stenzel, the Director of Registrations in the Queensland office of AHPRA, deposes to Dr Tabanas having failed the Multiple Choice Question (MCQ) examination set by the Australian Medical Council (AMC), which is the first requirement for general registration, on six occasions, being 22 May 2010, 20 November 2010, 19 February 2011, 19 November 2011, 13 October 2012, and 16 February 2013.
Ms Stenzel also deposes to Dr Tabanas having failed the Applied Knowledge Test (AKT), one of the examinations set by the Royal Australian College of General Practitioners (RACGP) which must be passed to gain specialist registration, on four occasions between 2010 and 2013. Another examination which must be passed to gain specialist registration is the Key Features Problem (KFP) examination. Ms Stenzel disposes to Dr Tabanas having failed that examination on two occasions, once in 2010 and again in 2012.
The final module of the RACGP examinations which must be passed to gain specialist registration is the Objective Structured Clinical Examination (OSCE). The OSCE cannot be sat by a candidate for specialist registration until both the AKT and the KFP examination have been passed. Thus, Dr Tabanas has never been eligible to sit the OSCE.
The decision process
Prior to making its decision the Board determined to invite Dr Tabanas to make a submission as to why his application to renew his registration should not be refused. It considered that he had contravened the condition of his registration requiring him to apply for general or specialist registration within four years.[2] It also considered that he was not a suitable person to hold registration.[3] The invitation to provide submissions was contained in correspondence to Dr Tabanas dated 19 December 2012.[4]
[2]See s 112(2)(b) of the National Law.
[3]Although the Board’s letter of 19 December 2012 stated ‘…with reference to section 82(1)(i)(c), you are not a suitable person to hold registration’, it is apparent that this was a typographical error and the Board was in fact referring to s 82(1)(c)(i)(C) of the National Law .
[4]Affidavit of Tracey Leigh Stenzel filed 11 June 2013, Exhibit TLS8.
Dr Tabanas provided a submission dated 16 January 2013. In that submission he informed the Board[5] that he was scheduled to sit the RACGP AKT and KFP and the AMC Part 1 on 9 February 2013 and 16 February 2013. He also informed the Board that he had made enquiries with the Australian Medical Council as to when the next available AMC bridging course was to be conducted. Dr Tabanas stated that he had planned to take the bridging course to boost his prospects of success in the AMC and RACGP examinations. It appears from his submission that he had not at the time of making the submission been notified as to when that bridging course would be available. Dr Tabanas said ‘as soon as the next available AMC Bridging Course program is open to applicants, I will apply and sit on it’.
[5]Affidavit of Dr Troy Tabanas filed 31 May 2013, Exhibit TB6.
At its meeting of 18 February 2013 the Queensland Registration Committee of the Board resolved to defer a decision on Dr Tabanas’ application for renewal of his registration to consider his results in the AMC MCQ examination which he undertook on 16 February.[6] In the event, Dr Tabanas failed that examination.
[6]Affidavit of Ms Stenzel, Exhibit TLS9.
The review application and the stay
The grounds raised in Dr Tabanas’ substantive application for review include, as ground one:
The Board had failed to take into consideration a relevant consideration and therefore breached the rules of procedural fairness when it did not consider the applicant’s undertaking the Australian Medical Council (AMC) bridging course from 22 April 2013 to 25 May 2013 when applicant (sic) had as early as March 2013 already informed the Board of this AMC bridging course.
The grounds also include, as ground three:
The Board did not consider the applicant’s sacrifice, personal and monetary, to attend and be absent from work for six (6) weeks from 22 April 2013 to 25 May 2013 for the Australian Medical Council (AMC) bridging course and the three day PESCI workshop, to aptly prepare himself for his upcoming examinations scheduled on 15 June 2013 for the AMC Part 1 and on 10 August 2013 for the RACGP applied knowledge test.
I am unable to find evidence of Dr Tabanas having informed the Board in March 2013, or at any other time, of his participation in the AMC bridging course to be held from 22 April 2013 to 25 May 2013. As set out above, in January 2013 Dr Tabanas only identified an intention to participate in such a course when available. He did not, in that submission, identify any particular course. His evidence does not demonstrate this having been communicated to the Board on any subsequent occasion.
Similarily, I am unable to identify evidence of Dr Tabanas having informed the Board of his enrolment in a three day PESCI Workshop; the AMC Part 1 examination scheduled for 15 June 2013; or the RACGP applied knowledge test to be held on 10 August 2013.
In his application for a stay of the decision Dr Tabanas raises, as ground one:
The applicant had already spent substantial money to prepare for his upcoming examinations on 15 June 2013 and 10 August 2013, including examination fees, course fees, travel and accommodation expenses. Applicant had attended the Australian Medical Council (AMC) bridging course in Melbourne from 22 April 2013 to 25 April 2013 and the Pre-employment Structured Clinical Interview (Pesci) Workshop on 24, 25 and 26 May 2013. During the six (6) weeks he attended the bridging course and pesci Workshop, applicant did not earn any income. It was a sacrifice for applicant and he considered it as his investment to his future in Australia as [a] general practitioner, which he considered as his home for the past five (5) years.
Notwithstanding a lack of communication from Dr Tabanas to the Board that he was in fact sitting those exams on those dates, it seems to me that his results in those examinations may well be a relevant matter for the Tribunal to consider in its review of the substantive application. Furthermore, whilst registration is not required to sit the MCQ examination, the Board accepts that it is required to sit the RACGP examinations.[7] That these matters may be relevant is so notwithstanding that the grounds for review in both the substantive application and, to a lesser extent, the application for a stay, have been framed more like grounds for judicial review rather than merits review.
[7]Affidavit of Richard William Barnes filed 11 June 2013 at [5] and the Board’s submissions at [26].
The decision to refuse renewal of Dr Tabanas’ registration is an appellable decision under s 199 of the National Law. Section 9 of the Health Practitioner Regulation National Law Act 2009 (Qld) provides that a reference in the National Law to an appeal against a decision is, for an appeal to QCAT as the responsible tribunal, a reference to a review of the decision as provided under the QCAT Act.
Section 20 of the QCAT Act provides that the purpose of the review of a reviewable decision is to produce the correct and preferable decision and that QCAT must decide the review by way of a fresh hearing on the merits.
In Attudawage v Medical Board of Australia(No 2)[8] Judge Kingham, the then Deputy President, said of a review under s 20 of the QCAT Act:
The purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide it by way of a fresh hearing on the merits. It may confirm the Board’s decision or set it aside and either substitute its own decision or return it for reconsideration by the Board with any directions it considers appropriate. It is a new determination of the rights of Dr Attudawage applying the law at the time of the rehearing and according to the evidence offered at the time of the rehearing.
[8][2011] QCAT 452 at [10].
In determining what is the correct and preferable decision in accordance with s 20 of the QCAT Act, it seems to me that the Tribunal would ‘have regard to the best and most current information available’.[9]
[9]See Shi v Migration Agents Registration Authority [2008] 235 CLR 286 per Kirby J at [41], [50] and [60]; see also Hayne and Heydon JJ at [99] and Kiefel J at [143] with who Crennan J agreed.
That issue does not need to be conclusively decided on the stay application. For present purposes it is sufficient that there is evidence that these are events which had been planned, the outcome of which may have a bearing on the substantive decision and which will not occur if the decision is not stayed. In the event that Dr Tabanas has passed the relevant examinations at the time at which the substantive application is heard, this seems likely to be a relevant consideration, although it will certainly not be decisive.
The Board submits that whilst Dr Tabanas has deposed to the fact that he is due to sit the AKT on 10 August 2013, he has not deposed to when he plans to sit the FKP or the OSCE. That is so; but there may be evidence of that on the substantive hearing in the event that he did pass the AKT in August.
So too the Board submits that Dr Tabanas has said that he is due to sit Part 1 of the AMC examinations, which the Board presumes to be the MCQ, in June 2013, but that he has not deposed to when he will sit Part 2. Again, that is so. Again, there may be evidence of that on the substantive hearing in the event that he passes the June examination.
Importantly, though, for the purposes of considering whether to stay the Board’s decision, is its submission that Dr Tabanas would have the opportunity to practice again if he passed the MCQ on 15 June 2013 as that would enable him to apply for limited registration.[10] In my view, that fact favours the granting of the stay rather than its refusal. That is particularly so when the impact upon patients in the period between deregistration and re-registration is considered.
[10]See the Board’s submissions at [35] and Affidavit of Ms Stenzel at [25].
Of course, if Dr Tabanas is unsuccessful in those examinations, then that will have a bearing on whether or not the stay should be continued. It is unlikely that the stay would remain if Dr Tabanas did not pass those examinations. It is for that reason the Tribunal should stay the decision only until 30 September 2013 or further order and list the matter for directions on a date after which the results of the examinations should be known.
The jurisdiction conferred upon the Tribunal by s 22 of the QCAT Act to stay the operation of a reviewable decision may only be exercised if the Tribunal considers the order is desirable having regard to:
a) The interests of any person whose interests may be effected by the making of the order or the order not being made;
b) Any submissions made by the decision maker to the Tribunal;
c) The public interest.
In its submissions filed on 11 June 2013 the Board submits that Dr Tabanas bears the onus of showing that the operation of the decision should be stayed pending the final hearing and that he must demonstrate some cogent reason that outweighs the public interest that practitioners are competent to practice their professional functions. The Board submits that a stay should not be granted as a matter of course.
In addressing the criteria under s 22(4) of the QCAT Act, the Board submits that the overriding consideration as to whether the stay should be granted is the interests of the patients in the Townsville area where Dr Tabanas has worked since his arrival in Australia in 2008. Certainly his patients are persons whose interests may be effected by the making, or not making, of the stay order.[11] Those matters would also fall within a consideration of the public interest.
[11]See Jaravaza v Medical Board of Australia [2013] QCAT 44.
The Board submits that this is not a case in which patients of Dr Tabanas will be left without access to a medical practitioner, there being no sworn evidence about the effect which his absence would have on the ability of the Northtown Medical Centre to cope with patient loads. The Tribunal agrees that this is not a case in which the impact upon patients in a remote area for which the difficulties in the attraction of medical practitioners to, and their retention within, is clearly demonstrated on the evidence.[12] It remains, however, that Dr Tabanas deposes to a patient load of some 40 patients per day which he reduced to 25 to 30 patients per day when working shorter hours to prepare for examinations.[13]
[12]Compare Jaravaza at [24] and [25].
[13]Affidavit of Dr Tabanas at [52] – [53].
It also remains the case that Townsville is an area of need for medical services.
Dr Tabanas was first registered under s 135 of the Medical Practitioners Registration Act 2001 (Qld). Section 135(1) described the purpose of registration under that section as being to enable a person to practise the profession in an area the Minister had decided was an area of need for a medical service. Under s 135(4) of that Act, the Minister could decide that there was an area of need for a medical service if he or she considered that there were insufficient medical practitioners practicing in a part of the State to provide the service at a level that met the needs of people living in that part of the State. Section 135(5)(c) required the Minister, in making an area of need decision, to have regard to whether it was reasonably practicable for the medical service to be provided by medical practitioners practicing in another part of the State.
The renewal of Dr Tabanas’ special purpose registration in 2009 and 2010 (twice) under s 135 of the Medical Practitioners Registration Act was to meet an area of need.
With the repeal of the Medical Practitioners Registration Act[14] and the commencement of the Health Practitioner Regulation National Law Act 2009[15] Dr Tabanas’ registration transitioned from special purpose registration to limited registration in an area of need, governed by s 67 of the National Law.[16] The renewal of Dr Tabanas’ limited registration in 2011 and 2012 was pursuant to s 67 of the National Law.
[14]By s 123 of the Health Legislation (Health Practitioner Regulation National Law) Amendment Act 2010 (Qld), with effect from 1 July 2010.
[15]Also from 1 July 2010.
[16]Section 277 of the National Law states that a class of person holding a type of registration under the Medical Practitioner Registration Act immediately before the participation day (being 1 July 2010) is taken from the participation day to hold the type of registration specified for that class of person under the registration transition plan prepared by the registrant’s Board. The Medical Board of Australia’s Registration Transition Plan – Medical practitioners, item no 54 states that a person granted ‘special purpose registration’ to enable practice in an area of need, under s 135 of the Medical Practitioners Registration Act is taken, from 1 July 2010, to hold limited registration (area of need) as a ‘medical practitioner’, on the Register of Medical Practitioners, with the following standard condition: ‘Limited to practise only in an area of need position under supervision arrangements approved by the Board’
As with s 135 of the Medical Practitioners Registration Act, s 67 of the National Law permitted the responsible Minister to decide areas of need. Pursuant to s 67(5) of the National Law a Minister could decide that there was an area of need for health services if he or she considered that there were insufficient health practitioners practicing in a particular part of the State to meet the needs of the people living in that part of the State.
When it is considered that Dr Tabanas provides medical services in an area of need and that his employer has sponsered him under a subclass 457 visa to work in the practice to provide those services, I am unable to conclude, as the Board’s submissions contend, that ‘this is not a case where patients will be left without access to a medical practitioner’. There is an absence of direct evidence on the issue. However, the inference is certainly open from other evidence that it may be the case that patients of the practice will be adversley affected.
The Board has expressed concerns about Dr Tabanas’ competence as a medical practitioner given his multiple failures of examinations. These are valid concerns; but on the stay application must be considered in the context of Dr Tabanas having conducted in excess of 16,000 consultations in the five years during which he has been registered, apparently without complaint.
It must also be considered in the context of the testimonials to his work and professionalism provided by the principle supervising doctor of the practice in which Dr Tabanas works, Dr Kaushal, and Dr Fairley, a Gastroenterologist with whom Dr Tabanas has co-managed patients.
Professionals from other medical professions, psychology, pharmacy, and physiotherapy, have also provided testimonials, these too should be considered. So too have a number of Dr Tabanas’ patients. However, no matter how well meaning those patients may be in giving those testimonials, limited weight should be given to their views.
Dr Tabanas deposes to the fact that the Board’s decision has significant adverse implications for him both professionally, personally and also financially. Whilst that is undoubtedly so, beyond the effects which it would have upon his ability to sit the examinations which, if passed, may have a bearing on his substantive application, I am not of the view that those professional and personal adverse implications ought be given any great weight. As was pointed out in Jaravaza, such personal impacts are no more than what is suffered by any professional who has his or her right to practice suspended or cancelled. An inability to practice has been recognised as being, of itself, insufficient to warrant the granting of a stay.[17] The more significant impact in this case is that upon his ability to sit the examinations, the results in which may have a bearing on the substantive application.
[17]Jaravaza, supra at [28].
Whilst there was evidence in Dr Tabanas’ affidavit that the removal of his right to practice medicine would result in his being unable to comply with the condition of his visa and that he would need to leave Australia by 3 June 2013,[18] Mr Barnes deposed to a conversation with the solicitor for Dr Tabanas on 7 June 2013 in which he was informed that Dr Tabanas was still in Australia and had applied for an extension of his visa so that he could remain so. The potential for the applicant to have to leave Australia would be a matter affecting his interests to which regard must be had pursuant to s 22(4)(a) of the QCAT Act. However, on the evidence, it is not a matter of any significant weight in this matter.
[18]Affidavit of Dr Tabana, at [10].
Dr Tabanas has also raised the financial impact which the decision would have upon his nephews and nieces who rely upon him for their expenses of daily living and education. Dr Tabanas also provides financial support for a nephew with cerebal palsy. Whilst those relatives of Dr Tabanas are persons whose interest may be affected by the decision, I am of the view that the impact upon them is, again, no more than the natural consequence of the removal of a right to practice from a professional upon whom others are dependent. Those impacts are not of the same order of significance as those upon Dr Tabanas’ patients. Of themselves, they would not justify a stay.
Disposition
I am satisfied, that there are cogent reasons for granting the stay. Dr Tabanas has enrolled to sit examinations which may have a bearing upon the substantive application for review. He requires registration to sit, at least, one of those examinations. If successful in another for which he does not require registration, the Board concedes that he would be able to reapply for registration. In the meantime, the evidence suggests that there could be considerable impact upon a significant patient load in the area of need in respect of which he is registered to practice.
It is appropriate to only stay the decision of the Board for a period during which Dr Tabanas may sit the identified examinations. The stay should be reviewed after the results of those examinations are known. If Dr Tabanas does not pass those examinations, then there maybe no utility in the stay continuing until the hearing of the substantive application.
For these reasons, the Tribunal ordered that the decision be stayed until 30 September 2013 or further order of the Tribunal, and listed the matter for directions on 20 September 2013 at which time the results of the examinations should be known.
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